Harry Spurr, full-time mediator, explains the significance of the mediation case everyone’s currently talking about: Superdry – what is it and why is it important?
- As a full-time mediator who, inevitably, spends a lot of time with litigation lawyers, I increasingly hear conversations about ‘the Superdry case’ and its impact on their work. So, what’s all the fuss about – what is Superdry and what does it mean for lawyers handling litigation?
- Miles J’s judgment in Superdry (full name: DKH Retail and others v City Football Group Ltd [2024] EWHC 3231 (Ch)) came late last year, in the aftermath of two other important recent developments in mediation: first, the famous Churchill case[1] in which the Court of Appeal decided that the courts have the power to order unwilling parties to mediation, and, second, subsequent changes to the CPR to reflect this.
- Against that context, Superdry is of real interest and importance. Why? Because it reveals how in practice the courts might approach this ‘new’ power. And the answer, if Superdry is any indication, is… well… perhaps ‘robustly’ would be one way of describing it.
- Superdry was in fact mainly about trademarks, beer, clothing brands and football. It sounds interesting – the issue at its heart was whether the branding for Asahi Super Dry lager appearing on the Manchester City football kit might be confused with the clothing brand Superdry – but none of that had any bearing on the mediation question. Which was whether Superdry and the other claimants could drag a (very) reluctant Man City to the negotiating table.
- When Superdry applied to the court for a compulsory mediation order, the club dug its studs in: there’s no point, they said (in effect)… there is simply no prospect of mediation succeeding. Plus, we need a judicial determination, and we’re entitled to one. In any event, it’s too late in the day: the trial is imminent, the parties have spent a small fortune on legal fees, and we aren’t available anyway.
- It’s fair to say that Miles J was unimpressed. Mediation, he said, “is capable of cracking even the hardest nuts” including “where the parties appear at first to have intractable differences”. Experience shows, he said, that “bringing the parties together can overcome an entrenched reluctance to negotiate, even where sincere”. Plus, in this case it would also allow a “focus on possible solutions rather than raking over historical grievances” and that the opportunity for a non-binary outcome, as in many other cases, would be valuable. In short: go away and have a bash.
- It is sometimes said that compulsory mediation will reduce settlement rates, forcing unwilling parties to tick boxes simply to please judges. You can lead a horse to water, etc.
- And that might occasionally be true, but Miles J’s comments reflect the magic in getting people around a table: more often than not, as even the most gung-ho parties are encouraged to reflect on the grisly reality of the litigation process that lies in store, they see the merit of a quick, cheap and risk-free alternative. And that, in my experience, is increasingly the view of the more enlightened litigation lawyers, as they nudge reluctant clients towards the negotiating room. Superdry offers useful additional support for their efforts in that respect.
- As for the outcome in that case, the judge’s pithy postscript says it all: “On 13 January the parties notified the court that they had settled their dispute.” You can almost hear his satisfied chuckle.
- Sometimes, even the most stubborn horse can be persuaded to take a drink.
- Shortened version of this article (in the words of a colleague of mine):
‘Mediation has no chance here.’
‘Well, give it whirl anyway.’
‘We’ve settled.’
Harry Spurr is an accomplished, specialist and full-time mediator in commercial, land / property, wills / inheritance and other civil disputes. Ranked as a leading mediator by both Chambers & Partners and Legal 500, he is regularly appointed by the UK’s leading law firms to mediate in complex and challenging cases in the UK and internationally. Find out more here.
Harry is currently involved in international discussions about the use of mediation in the reconstruction of the social fabric of Gaza.
[1] Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416